Monthly Archives: September 2011

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“Oh, I’m real. Real enough to defeat you! And I did it without your precious gifts, your oh-so-special powers. I’ll give them heroics. I’ll give them the most spectacular heroics the world has ever seen! And when I’m old and I’ve had my fun, I’ll sell my inventions so that everyone can have powers. Everyone can be super! And when everyone’s super . . . no one will be.”

—Earl Hickey as the voice of Syndrome in The Incredibles

The politics of homogeneity just keeps getting sillier.

Following an incident last Fall in which an openly-gay student was asked to resign from a Christian fraternity, Vanderbilt University has placed a number of student groups—four of them Christian organizations—on “provisional status” for noncompliance with the school’s nondiscrimination policy. At the center of the controversy is the Christian Legal Society. Apparently the following language from the CLS constitution offends:

“Each officer is expected to lead Bible studies, prayer and worship at chapter meetings.”

According to Vanderbilt’s Office of Religious Life, the school’s policies do not permit this kind of expectation of officers in student organizations. In other words, a student organization can’t expect its leaders to participate in and promote the organization’s ideals and purposes, because that’s discrimination. Students may have their group so long as they don’t exclude anyone for any reason, including the fact that the one being excluded doesn’t have any interest in, or may even be actively opposed to, the group’s core premise.

This is the silliness you get when the Left mindlessly confuses preventing discrimination with forced total inclusion. “Discrimination” does not mean the failure to include everyone everywhere in all things and under all circumstances. Discrimination refers to the arbitrary denial of basic rights or societal benefits based characteristics that have nothing to do with the rights or benefits being denied. Typically we’re talking about “immutable” characteristics—things that are just part of the hand we’re each dealt at birth, such as race, gender, national origin, or handicapped status (some would also argue sexual orientation here). When we add religion we move away from immutable characteristics to matters of choice—one may voluntarily convert from one religion to another—but the fundamental essence of discrimination remains the disconnect between the right or benefit being denied and the basis for the denial. Few would argue in 2011 that the fact that a person is black or Catholic presents a legitimate basis for, say, excluding that person from college; skin color or religious view has no bearing on a person’s ability to perform academically.

But where there is a connection between the benefit and the denial, there is no discrimination. For example, if the reason for rejecting a job applicant is directly and legitimately related to the requirements for the position in question and is consistent with business necessity—such as refusing to hire a blind man to drive a bus—the denial ceases to be discrimination. The ability to see is legitimately and directly related to the ability to drive the bus. This is the reason Vanderbilt would be perfectly justified in keeping me off its basketball team; at 5’ 7” and with no talent, no one would contend that doing so was some form of discrimination, because the reason for my denial goes directly to the purpose for which the team is organized.

Query whether the ability to become a leader of a student organization rises to the level of a “right” the denial of which could ever constitute “discrimination.” But that aside, CLS’ constitutional requirement that its leaders actively promote the group’s beliefs by leading Bible studies and worship—i.e., that they actually be active Christians—would seem to be directly and legitimately related to the group’s aim of fostering and supporting Christianity. And it’s not an immutable characteristic; anyone who chooses can meet the requirement. Excluding those who by their own free will elect not to meet the requirement isn’t discrimination, and one has to wonder who, exactly, is being harmed by CLS’ position. Is there really a student clamoring to run for CLS president who can’t because they’re a committed atheist (and if so, doesn’t that lend even greater legitimacy to CLS’ position)?

It is no answer to say that CLS can simply remove the offending provision from its constitution and recognize that as a practical matter no non-Christian would ever actually get elected as an officer of their group. Facially that fails to address the Manchurian Candidate concern that a poseur could infiltrate the group and only reveal his true colors after being elected. More substantively, however, discrimination is discrimination, and you cannot do by tacit practical agreement that which you cannot do by official policy.

Not surprisingly, this policy of inclusion doesn’t apply to all at Vanderbilt, and there’s the real rub. One imagines the school would have a hard time telling its Black Student Alliance—they of theBlack Power fist logo—that they had to admit the Klan’s Grand Dragon as a member. And witness the Association of Hispanic Students (which although the university isn’t saying, you can bet the house isn’t among the groups put on double-secret probation), whose constitution requires voting members to be “interested in promoting the aims and objectives of the association,” which include “promot[ing] Hispanic cultural activities within and beyond the campus,” and “foster[ing] the recruitment, registration, and the establishment of scholarship for Hispanic students.” So it’s OK for the Hispanic student group to require its members to support and participate in the purposes and beliefs to which the group is dedicated, but it is not OK for the Christian student group to require that its leaders support and participate in the beliefs and purposes to which that group is dedicated.

Huh?

Now, if Vanderbilt were truly interested in a totally inclusive environment, it would ban student groups altogether:

There are no gay students, Hispanic students, Christian students, or engineers; you are all Vanderbilt Commodores, and you will all be included in everything and treated absolutely equally down the last molecule of your body.

The reason it doesn’t is that at what level of common sense is left its administration surely realizes—and I agree—that student organizations like these are good things. It is a positive on a college campus to have organizations where students of like interests or backgrounds can socialize and work to promote their various philosophies and cultures. But such groups become pointless if they can’t keep themselves directed to the purposes for which they were organized. So it must be not that there’s some issue with inclusion, but with the purposes themselves.

For Vanderbilt the issue isn’t really inclusion, it’s Christianity, which is odd given that the school as originally founded was operated under the auspices of the Methodist Episcopal Church. It would be one thing if Vanderbilt were telling an atheist student he can’t have an atheist student association because of his (in this case non-) religious beliefs. But what Vanderbilt is saying with CLS is that not only does the atheist have the right to participate in a student organization, he has the right to become the leader of their specific organization despite affirmatively rejecting everything that organization exists to promote. In essence, Vanderbilt’s position to CLS is: You can have your Christian organization, you just can’t make it Christian—a message it doesn’t send to other organizations.

So to my friends in Nashville I would pose this question: “Why do you notice the splinter in your brother’s eye, but not perceive the wooden beam in your own?”

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Ankylus: Your comment the other day somehow got lost in the system during the moderating process. My apologies. Please feel free to re-submit. RDW

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With the coming of the Second World War, many eyes in imprisoned Europe turned hopefully, or desperately, toward the freedom of the Americas. Lisbon became the great embarkation point. But not everybody could get to Lisbon directly, and so a tortuous, roundabout refugee trail sprang up: Paris to Marseilles, across the Mediterranean to Oran, then by train, or auto, or foot across the rim of Africa, to Casablanca in French Morocco. Here, the fortunate ones through money, or influence, or luck, might obtain exit visas and scurry to Lisbon; and from Lisbon, to the New World. But the others wait in Casablanca . . . and wait . . . and wait . . . and wait . . .

—Opening narration, Casablanca

You should pass it right away.

We are given to understand that the President thinks there is some urgency behind the need to take action to create jobs. And you know the campaign pitch that’s coming: It’s the Tea Party Republicans holding everything up. Obama can’t run on his record, so he’s going to have to run on the straw man of what his record “would have been” but for the stonewalling from the do-nothing Right.

Can’t these people say “yes” to anything?

But where has this urgency been during the 28 months since May 2009 when—despite assurances that Stimulus I would guarantee unemployment stayed below 8%—unemployment first passed 9%, cresting at 10.1% in October of that year; a time, by the way, at which the Democrats held the White House and overwhelming majorities in both houses of Congress? They could have passed anything they wanted, and there would have been nothing the Tea Party or anyone else could have done to stop it. But instead of acting on jobs, they chose to use that time and their effective supermajority—curiously always behind closed doors, in the middle of the night, and at the last minute—to ram through Obamacare and attempt to ram through Cap-and-Trade.

Where was that urgency in April of this year, when after a temporary dip to 8.8, unemployment shot back above 9%, yet there was no plan from Obama?

Where was that urgency in June when Debbie Wasserman-Schultz said the Democrats “own the economy,” and unemployment was at its 2011 high of 9.2%, yet there was no plan from Obama?

Where was that urgency during the entire month of August—a month during which the economy generated zero net jobs—while the President was so busy on the golf course he couldn’t be bothered to send a draft of his “jobs plan” for Congress to review in advance of his petulant and, frankly, childish tongue-lashing?

Where is that urgency now as Harry Reid and the Democrat-controlled Senate sit on the proposal it took Obama 966 days in office to publish because even he and the Leftists in Congress can’t get behind it?

Obama and the Left continue to dream about the hypothetical jobs of the green future—or at least funneling hundreds of millions in taxpayer dollars to their billionaire friends (see Solyndra). But they can’t manage to grasp that there’s a very real need for very real jobs right now. And there is action that can be taken right now that will allow private industry to create jobs without costing a single taxpayer cent.

Case in point: The Keystone Pipeline.

As I discussed in a post last month, the Keystone XL Pipeline extension is a proposed project to extend the existing Keystone Pipeline from oil-rich sands in Canada to refineries in Texas. This project would significantly increase the volume of available crude, and create thousands of construction, transportation, and refining jobs, all without federal “stimulus” money. It’s been held up in bureaucratic red tape due to alleged environmental concerns—recall that Daryl Hannah, one of the great minds of our time, was arrested at a protest outside the White House (one wonders how she got there from her off-the-grid Colorado bungalow; betcha dollars-to-donuts it involved flying in one of those private jets the Left so hate)—and was awaiting a revised State Department report on the potential environmental impact. The State Department issued its final report August 26, stating that the project would have “no significant impacts” to the environment if proper practices were followed. All the project needs is Obama’s go-ahead. Yet now a month later, while we’ve heard endless browbeating from Obama about the need to act now on jobs, he has done absolutely nothing on this project; a project that actually is “shovel ready,” actually will create jobs, and actually will not cost U.S. taxpayers.

It is worth noting that one of the environmentalists’ core objections isn’t with the pipeline itself, but with the fact that it is transporting oil developed from so-called “tar sands” that represent a huge boost in reserves. In a report published two Sundays ago in the Houston Chronicle, it appears that Chinese firms are spending billions to gobble up large segments of these Canadian sands, and will surely develop them regardless of whether Keystone XL gets built. The only question is whether we will participate. At a time when the White House and Congressional Left are so concerned about ceding industries to the Chinese, this seems like a no-brainer. “Green” energy may ultimately prove to be the industry of the future, but oil and natural gas are in indisputable fact the industry of right now. News reports continually say that his approval is “expected by the end of 2011,” but if the need to act on jobs is so urgent, and this project actually does create jobs, why not act now?

The answer is Keystone is part of Obama’s continuing political war on the oil industry. The American Petroleum Institute—yes, it’s an oil industry lobby group, but its proposals have been echoed by the U.S. Chamber of Commerce—has suggested that programs to increase leasing and open drilling areas in places like the Gulf of Mexico and Alaska could create between a half-million and a million jobs, and would do so not only without costing the taxpayer, but would generate billions in revenue through additional royalties and lease rentals as well as additional excise and other taxes. But Obama—who can’t stop lecturing on the need to stop playing politics and take action—can’t bring himself to go along with these, either.

The truth is Obama isn’t the least bit interested in creating jobs. He’s interested in creating the illusion of action, while punishing those the Left perceives as their enemies, and redistributing what wealth is left in this country. It is more politically expedient to him to pander to the environmental zealots and anti-industry wackos in his base by holding up projects like Keystone, preventing domestic drilling, and pursuing industry-specific tax increases, than it is for him to take action that will actually create jobs in the real world. So vast reserves continue to go untapped, and thousands who could be employed continue to sit idle.

—James Earl Jones as the voice of Darth Vader and Billy Dee Williams as Lando Calrissian in Star Wars Episode V: The Empire Strikes Back

My Dad suggested at some point I title a post “They Really Believe That?” The trouble is, that title could apply 2-3 times a week.

Last week Paul Krugman, piggybacking off claims made by Senate candidate Elizabeth Warren, continued banging the ridiculous drum that the rich don’t pay their fair share, this time claiming that it’s actually the rich waging class warfare on the poor by reneging on the “social contract” that has allowed the rich to get rich in the first place:

“Elizabeth Warren . . . recently made some eloquent remarks to this effect that are, rightly, getting a lot of attention. ‘There is nobody in this country who got rich on his own. Nobody,’ she declared, pointing out that the rich can only get rich thanks to the ‘social contract’ that provides a decent, functioning society in which they can prosper.”

At the core of this argument was an unidentified “new estimate” from the Tax Policy Center, which Krugman claimed showed that 25% of those earning over $1 million pay a combined effective rate of 12.6%, which he then says—without any supporting data—is less than the rate paid by some unidentified group of “middle class” wage earners (never mind, of course, what happens with the other 75%). Significantly, the Tax Policy Center late Friday apparently withdrew several recent estimates, including one titled “T11-0361 – Distribution of Effective Individual Income and Payroll Tax Rate, Under Current Law, by Cash Income Level, 2011”—one suspects this is what Krugman was referring to—saying that they had made an error that overstated some high income earners’ income, and thus understated their relative tax burden.

What’s the over/under on how long it takes the Times to issue a correction?

Of course, these “social contract” arguments ignore other data from that same Tax Policy Center showing that in 2010 the combined income and payroll tax burden on families at the poverty level was between negative 20% and -27.2%, depending on their number of children. That is, after deductions and credits, these people are net recipients, rather than disproportionate contributors. And as I reported last week, according to the IRS, the average total tax liability—that’s net of credits and including the payroll taxes of which Krugman and the Left are so proud—for a head of household with AGI of $50,000 was 6.4%, or half this 12.6% magic number that has set them off (the real average combined tax burden for those earning over $250,000 and over $1 million is actually 23.1% and 31.2%, respectively).

The suggestion that the wealthy as a group are cheating the poor and middle class by paying a lesser percentage of their income in total taxes is demonstrably false. To the extent there’s any disparity in the rates being paid by different income groups, we could easily cure it by reverting to a flat 10% (or pick your number) tax for everyone, regardless of income level, but I’m betting we won’t get any takers on the Left.

Interestingly, for all their “social contract” indignity at the wealthy’s relative contribution to society, Krugman and the Left conveniently ignore charitable giving. You want to talk about social contracts and mutual contribution to the greater good? According to a 2005 study by the Center on Philanthropy at Indiana University, those making over $200,000 and over $1 million consistently and by a wide margin out-contribute the middle class and poor to charitable causes benefiting society at large:

Basic Needs

Percentage of Households Contributing

Average Contribution

<$100,000

25.8%

$365

$200,000 – $1 million

74.5%

$3,076

>$1 million

76.4%

$12,673

Health

Percentage of Households Contributing

Average Contribution

<$100,000

17.8%

$173

$200,000 – $1 million

74.1%

$2,805

>$1 million

70.4%

$92,289

Education

Percentage of Households Contributing

Average Contribution

<$100,000

11.2%

$243

$200,000 – $1 million

82.2%

$15,327

>$1 million

82.9%

$78,138

So in addition to the disproportionate burden imposed by what the government forcibly takes, the wealthy voluntarily contribute to the greater social good at a much higher rate than others, both in terms of total participation, and dollars. The vast, vast majority of the middle class and below contribute literally nothing at all.

But focusing on the specific numbers ignores the real problem, which is the conceptual notion that the wealthy owe some quasi-contractual obligation to fund the existence of the rest of society. As I recall, the Lockeian concept of social contract embodied in the Declaration of Independence was that government exists to protect private property, not to take it. The idea is that in a perfect world there would be no government, and we would each have total freedom to conduct ourselves as we see fit. But because it is not a perfect world, we need the social contract of government whereby each cedes a certain amount of his absolute freedom in order that the government can protect life, liberty, and property. For example, each of us cedes our liberty to kill the other. Nowhere, however, did the “social contract” concept envision granting one man a right to live off the labor and property of another.

Krugman and the Left also fundamentally misunderstand the nature of a contract. There are three basic attributes of a contract. The first is it must be a voluntary arrangement. Michael Corleone’s tale of his father and Luca Brasi obtaining Johnny Fontaine’s contract release at gunpoint makes for good cinema, but at law a contract obtained under that kind of duress is unenforceable, because it’s not a voluntary agreement. In our tax context, there’s been no agreement to a social contract of that nature.

The second attribute of a contract is there must be an actual agreement. The parties must reach a meeting of the minds as to the nature and specific terms of their relationship. The very fact that we’re having this discussion tells you there is no meeting of the minds here. An agreement or contract cannot come into being simply because one side declares it to be so.

The third attribute of a contract is there must be mutuality of obligation. I owe you something, but there must be some return obligation on your part to do something or to refrain from doing something in exchange for my obligation. And this is really where the social contract analogy falls apart, because the social contract exchange is each of us ceding that certain part of our liberty to secure society; everyone makes the same contribution of his ceded liberty, and that exchange has already been made. What Krugman and the Left are trying to do with their “social contract” is tack on an additional obligation for someone who does well financially to contribute disproportionately from their assets to what the Leftist in his sole judgment decrees is the greater good (i.e., for the Leftist to give to someone else).

The problem is, I haven’t received my presumed additional “benefit” of this social bargain from something additional given by those who are going to receive from my disproportionate contribution. I’m not wealthy because the middle class is middle class or because the poor is poor, or because of something they’ve given me. I’m to pay in, but those who take out have no corresponding obligation to me.

On Monday Obama unveiled his new deficit-reduction plan, which includes several tax increases aimed at the “wealthy,” i.e., those making over $250,000 a year. As he has done since August, he is trumpeting this plan with the cry that the rich need to “pay their fair share.” And piggy-backing on the silly ramblings of an obviously senile Warren Buffett (who for all his airs of undertaxation guilt hasn’t yet managed enough remorse to call off his nearly decade-old dispute with the IRS and simply write the check on back taxes he’s owed since 2002) Obama calls part of his plan the “Buffett Rule,” backed by this whopper:

“It is wrong that in the United States of America, a teacher or a nurse or a construction worker who earns $50,000 should pay higher tax rates than somebody pulling in $50 million.”

Is anybody really this gullible?

Well, for those who just might be, let me try to walk you through it.

To begin with, Obama is leveraging off of statements Buffett has made for years that he pays something like a 17% rate, while his secretary pays a 30% rate. But let’s define our terms. A “marginal” tax rate is the tax rate applicable to the last dollar earned (what we sometimes call our tax “bracket”). Someone in the 33% tax bracket doesn’t pay 33% of their income in taxes, because income is taxed “progressively”; that is, the first $12,000 (for head of household) or so is taxed at 10%, earnings between that and $46,000 or so are taxed at 15%, and so on. So the “effective” tax rate— the percentage of total earnings actually paid as tax—is necessarily something considerably lower than the marginal rate. The 30% Buffett applies to his secretary is almost certainly a rounded reference to the 28% marginal rate applicable to income between $70,000 and around $212,000 (depending on filing status), which means is he’s disingenuously comparing his effective tax rate against his secretary’s marginal tax rate, which is apples and oranges; her effective tax rate would likely be something more like 10%, well below the 17% effective rate Buffett claims he pays (when he bothers to pay it).

And, as has been widely observed, the bulk of Buffett’s earnings are in the form of dividends that are not taxed as ordinary income like salaries, but are instead taxed at the capital gains rate of 15%. Sounds unfair until you understand that because those dividends are paid from corporate profits, they’ve already been taxed as corporate income at 35%, the highest corporate income tax rate in the industrial world. For example, assume ACME makes $1000 in profits and elects to pay Wile E. Coyote a 1% dividend. You’d think that would mean Mr. Coyote gets $10, which would net him $8.50 after the 15% capital gains tax. But he doesn’t. ACME first has to pay a 35% corporate income tax, leaving only $650 to pay its shareholders. Coyote’s 1% is actually $6.50, upon which he then pays capital gains of $0.98. Instead of netting $8.50, he nets $5.52; the total tax extracted from the original $10 is $4.48, or just under 45%.

When the corporate tax is factored back in, Buffett’s real effective tax rate is something more like 40%. Buffett’s complaint that he’s taxed less than his secretary sounds nice and makes him look generous, but it has no basis in reality, and he knows better.

Apparently in the course of urging him to get tough with the Right, the Obama’s advisors not only neglected to fact-check the Oracle of Omaha, they also forgot to hand Obama a calculator. The whole pitch depends on the premise that the rich pay lower tax rates than middle income households. He says, “This is not class warfare, it’s math.”

Well, let’s just look at his math.

Assume A earns $50,000 in adjusted gross income, and B earns $250,000. For 2011, the marginal tax rate for A is 25% (assuming head of household status), which applies to $3,750 of his income. For B, the marginal tax rate is the maximum 33%—a third higher than A’s rate—which applies to $56,650 of his income. According to the IRS, in 2009 (the last year for which data is available) the average total income tax as a percentage of adjusted gross income (essentially the effective tax rate) was 5.3% for A, and 17.5% for B—three times A’s rate. The 2009 average total tax liability (income tax plus all other taxes, including Social Security taxes, and net of all tax credits) was approximately 6.4% for A, and 23.1% for B—nearly four times A’s rate.

But what about millionaires and all their loopholes? Well, for those of you drinking that Kool-Aid, let’s first remember that most credits and deductions get phased out as income increases, such that at higher income levels they’re no longer available. Second, they are presumably baked into the data put out by the IRS since it’s based on total tax reciepts, so we can do the same comparison as above and add in C, a head of household earning AGI of $1,000,000:

A—$50,000

B—$250,000

C—$1,000,000

2011 Marginal Rate

25%

33% (+32% over A)

33% (+32% over A)

2009 Total Income Tax as a % of AGI

5.3%

17.5% (+230% over A)

24.4% (+360% over A)

2009 Total Tax Liability as a % of AGI

6.4%

23.1% (+261% over A)

31.2% (+388% over A)

According to data compiled by taxfoundation.org, in 2008 the top 10% of earners had an average income tax rate (the percentage of AGI paid as income taxes) of 18.71%; the bottom half had an average rate of just 2.59%.

This isn’t demagoguery, or wishful thinking, or some sort of latent racism. This is, as Obama says, “just math.” Obama’s claim that the wealthy are taxed at a lower rate than the middle class is simply and objectively false any way you slice it, and one suspects that Obama, like Buffett, knows better.

Not only do the wealthy pay a higher percentage of their income in taxes, but it bears repeating that they also pay the vast majority of the total tax tab, and a much higher percentage of that tab than the share of income they receive. In 2008 the wealthiest 10% paid 70% of total federal income taxes, while earning only 45% of the nation’s adjusted gross income, for a total relative burden [(share of taxes – share of income)/ share of income] of +56%. By contrast, the bottom 50% of wage earners received 13% of the nation’s adjusted gross income, but paid less than 3% of the total income taxes, for a total relative burden of -333% (the negative number indicating they paid a lesser share than they received). We spend a combined $1.4 trillion a year on unemployment benefits, Medicare, and Medicaid. This means that after taking from higher earners a greater percentage than the share they receive, nearly 40% of total federal spending consists of nothing more than giving that money to others. I hear repeatedly from folks on the Left that “I don’t mind paying more in taxes to help people.” Trouble is, it’s virtually certain that they’re not; they’re insisting that someone else pay more.

Obama says higher earners aren’t paying their fair share; that they pay a lower tax rate than do lower wage earners; that this isn’t class warfare, but simply math.

President Obama faces the most significant foreign policy challenge of his administration this week, as Palestinian Authority President Mahmoud Abbas plays chicken with him over what is expected to be a Friday request for statehood recognition from the U.N. Security Council. How Obama plays it, and how this plays out, will tell us a lot about what kind of statesman he in fact is, and what kind of stroke he has on the global stage. It could be Obama’s Camp David Accords—or his Iran Hostage Crisis. And the stakes and potential consequences couldn’t be bigger.

So, where the hell is he?

Obama has been virtually silent on the situation with Israel and the Palestinians in recent months, and frankly, it’s scary how far behind the fastball he is on this.

To be fair, to a certain extent the confrontation we now face is the inevitable result of flawed 20th Century international intervention. Recall that the entire region was part of the Ottoman Empire for several hundred years prior to World War I. The sovereign states of Israel, Lebanon, Jordan, and Syria did not exist. Nor was there any Palestine as such. Modern-day Lebanon, Syria, and Jordan were all created out of the League of Nations’ French and British Mandates in the 1920s. Following World War II, the United Nations developed a plan to divide the land west of the Jordan River into two separate Jewish and Arab states, with an enclave including Jerusalem and Bethlehem to be administered as an international protectorate under U.N. jurisdiction. Typical of U.N. initiatives, however, the proposed division was untenably artificial and non-contiguous, bearing a closer resemblance to the patterns of a lava lamp than geopolitical borders. Having adopted an unworkable plan to create Israel essentially from whole cloth, the U.N. then abdicated responsibility, and conflict between the fledgling Jewish state and disaffected local Arabs followed immediately thereafter.

But to a large degree, Obama has brought the present showdown on himself through his own lack of international leadership. In his zeal to appease anti-Semitic/anti-U.S. regimes in the Muslim world, and the Islamophiles in Europe, Obama has repeatedly treated Israeli Prime Minister Benjamin Netanyahu like a used doormat. This had to suggest to the Palestinians weakness on Obama’s part, and diminished U.S. resolve to support Israel if not outright support for the Palestinian position. It is little wonder that they might perceive this as a once-in-a-lifetime opportunity to take a shot at forcing their way into statehood, particularly with 2012 and the prospect of a dramatic shift in U.S. support for Israel looming.

Surely they are further emboldened by Obama’s careless lack of international leadership over the course of the “Arab Spring.” Obama has casually supported uprisings with little or no regard for who was going to fill the resulting vacuum. Hosni Mubarak may have been a brutal a-hole, but at least he was more or less reliable as an ally and as one who would keep the peace with Israel. What will rise in Egypt in his place is anybody’s guess. Lord knows who will take over in Libya, or in Syria or Yemen if those regimes are toppled—but I’ll bet you Obama doesn’t. I guess as long as it’s “change” it’s all good; never mind what we’re changing to.

That it has gotten this far with no action from the White House shows just how out of his depth Obama is as a Chief Executive, and we now face an extremely dangerous situation. The reality is that the Palestinian Authority has overwhelming international support. If Obama accepts the Palestinian demand for international recognition as a sovereign state, he shows further weakness. Israel will be left effectively alone, which may further embolden anti-Semitic extremists in the surrounding countries who still refuse to recognize Israel’s right to exist—witness the recent destruction of the Israeli embassy in Cairo that went by without so much as a peep from Obama, much less the international community at large—and any other banana republic dictator who chooses to kick sand in Obama’s face. Moreover, recognizing Palestinian sovereignty lends legitimacy to actions by the Palestinians themselves against Israel as “national self-defense.” Particularly with no defined contiguous territory, the untenable situation the U.N. created in 1948 is perpetuated.

If Obama vetoes the demand in the Security Council, there will almost certainly be violent uprisings against both Israel and the U.S., despite Abbas’ disclaimers to the contrary. Indeed, the Arab community may see no alternative left but to establish Palestinian sovereignty by force, which at this point could mean joint military action—once again—by Syria, Lebanon, Egypt, Jordan . . . and a potentially nuclear Iran. They will likely have support, at least behind the scenes, from Russia and China. What happens if Turkey and Pakistan, which have been increasingly antagonistic to the U.S. and Israel, join as well? Even the Saudis may not sit this one out. Unlike 1967 or 1973, this time the U.S. may be forced to intervene militarily, at which point all bets are off.

Either way, this could get very, very ugly.

If we are to continue to have any meaningful, credible voice in the discussion, the President can’t continue to vote “present,” and he can’t wait for a poll, and he can’t lead from behind. He can’t wait to see what Richard Trumka, or the NEA, or the Sierra Club thinks. This issue requires bold leadership, and unfortunately it may already be too late. Obama needs to start with an unequivocal and repeated statement—he might even consider unilaterally inviting himself to address the General Assembly, assuming he can work out the scheduling—that any consideration of Palestinian statehood must be preceded by official recognition from every state on the planet that Israel exists as a sovereign state with the right to defend herself and her citizens, and that we will back her, militarily if necessary. Until all those who support Palestinian statehood publicly accept Israel’s right to exist, we can’t have this discussion.

But Obama also needs to have a concrete plan, and he needs to be active and tough—with both sides—about it. While it is true that there is going to have to be some negotiation between the Israelis and Palestinians, the President needs to exert some muscle. The Palestinians and the international community have to understand that the violence has to stop, and ANY breaches are not going to be viewed as the isolated acts rogue terrorists, but as acts of war sanctioned by the Palestinian government. If you are in control as a sovereign government, then act like it. Either you get Hamas under control—NOW—or we will assume they are operating as your military-in-fact, and we will deal with you as we did the Taliban.

Any viable plan is also going to have to involve a contiguous geography for an independent Palestine, while addressing Israeli security concerns. To be workable, the borders would probably have to bear a closer resemblance to the 1967/1949 “green line” borders than not, andIsraeli settlements within a contiguous Palestine would have to go, painful as that will be for some—bear in mind that there are plenty of permanently displaced Palestinians, too. But Obama likely no longer has sufficient goodwill to be able to sell Netanyahu on either proposition.

This situation calls for a leader, not a campaigner. Would that Obama understood the difference.

Every time I turn on a golf tournament, the TV leader board posts a national flag next to the players’ names, as though they are competing in the tournament on behalf of their country. Well, with all due respect to Jim Nantz—who, incidentally, is the best in the business—South Africa didn’t win the Masters this year. Charl Schwartzel did.

When did everything become the Olympics?

I bring this up because some of the commentary in the wake of the brewing Solyndra disaster reflects this same sort of global competition mindset. Yes, the Solyndra deal brings into sharp relief the breathtaking level of incompetency within the Obama administration—even the Bush administration ultimately got it right and rejected that deal. Yes, it demonstrates the problem with the Left’s blind adherence to their “green jobs” religion. Yes, it may be the tip of a very large iceberg of cronyism and corruption that could prove bigger than Watergate if those with the means to do so will investigate it with the same tenacity Bob Woodward and Carl Bernstein went after a two-bit burglary.

But notice the kind of thinking that is playing out here. White House Press Secretary Jay Carney defended the loan program from which the Solyndra debacle emanated:

“We have a choice to make as a nation, because we will be buying renewable energy products, you know, whether it’s wind, biofuel, solar . . . Do we want to buy it with a stamp on it that says ‘Made in America’ or are we going to buy it from the Chinese or other countries? We have to be aggressive in competing in the global economy. And, you know, high-tech clean-energy industries are going to be key to winning this century economically.”

The always erudite Henry Waxman echoed the sentiment:

“If you live in reality, you know the world cannot continue its dependence on fossil fuels and that we are in danger of losing this industry to our competitors, especially China.”

Nevermind the wrongheaded self-certainty of the basic premise that “we will be buying renewable energy products”—nobody’s buying them, which was exactly Solyndra’s undoing. It’s the underlying mindset that’s the problem here. Wehave to be aggressive in competing. We are in danger of losing this industry to our competitors.

For these people, the global market has become a matter of the United States, as a collective unit, competing against China, rather than Solyndra and First Solar competing against Suntech Power and Yingli Green Energy. It’s no longer a competition between private enterprises, but between nations. And it is this sort of thinking that leads to programs where the federal government is making essentially zero-interest loans—read: subsidizing—to startups. Because “we” have to win in the global competition with China, “we” have to “invest” in these businesses.

Except that these businesses like Solyndra aren’t “us.” They’re still privately-owned firms—owned by billionaires, incidentally. And they are risky startups in unproven markets existing almost solely by virtue of—you guessed it—still more government subsidies. If a group of people wants to start a business in that industry and try to make a profit by developing a technology that can do it cheaply and effectively, great. Go for it. But what these federal low-cost loan programs do is allow such entrepreneurs to forcibly take money from the rest of us to risk as venture capital. If it works, they get rich. If it doesn’t, we take the hit.

Where do I sign up?

The United States government isn’t an investment bank, and it shouldn’t be in the business of being in business. These days it isn’t even very good at being in the business of government, but here it’s totally out of its depth. What we see in Solyndra is an exceedingly low-interest loan being made to a venture so risky it couldn’t get real investment bank financing, which is exactly ass-backward. This is what you get when you have a department headed by a physics professor—i.e., someone who’s never known anything but government-funded programs—with no background in business, finance, or economics making half-billion dollar business investment decisions; it’s no coincidence that Solyndra went bankrupt in September 2011, exactly when the people who actually do know something about money and markets said it would.

Nor is it necessary for government to create markets where they don’t exist and then finance businesses to fill them. John D. Rockefeller didn’t need federal assistance to enter the then-fledgling petroleum industry by creating what became Standard Oil (which after being broken up due to antitrust issues in 1911 became all or parts of what today are ExxonMobil, Chevron, ConocoPhillips, and BP)—in fact he did it despite ever-increasing adverse regulation. Alexander Graham Bell didn’t need the government to invent the telephone and create American Bell Telephone (later folded into the original American Telephone and Telegraph (AT&T)), thus launching the modern communications industry. Steve Jobs didn’t need massive federal subsidies to start Apple, thus essentially creating the personal computer market from scratch.

This shouldn’t be about the U.S. or China; it should be about letting the markets do what markets do. If it’s a good idea, and consumers want it, the technology will develop and the businesses will come (and hence, jobs). And American ingenuity and drive will continue to expand horizons and thrive, just as it has for the last 200+ years. Government should be there to ensure that people like these have an even playing field—that’s what trade agreements and tariffs are for, and that’s exactly the kind of thing the Framers envisioned the federal government doing under the Commerce Clause (see Federalist Paper No. 45). But it isn’t the government’s place to force us all to make risky investments, or to guarantee a market, or ensure against failure. Let the market sort it out; good, efficient ideas will survive. Bad and inefficient ideas should be allowed to die, or they become a perpetual drag.

The idea that it’s zero-sum, either the Chinese win or the Americans win is wrong. If a Chinese company can make a better, cheaper mousetrap, so be it. And in fact, if the Chinese government wants to make it a loss-leader by subsidizing it, so much the better—American consumers (assuming they want mousetraps at all) get them even cheaper, and they do so on China’s, er, nickel.

Maybe an American company should do something else that it does better. That way, everyone wins.

We’ve now got the gist of Obama’s new “jobs plan,” and as I predicted it’s being offered as a take-it-or-leave-it package. $447 billion in additional “stimulus” spending consisting of the following basic elements:

·Extending the payroll tax reductions enacted in December of last year,

·Extending unemployment benefits,

·Giving federal subsidies to state programs for training unemployed workers,

·Giving federal subsidies to local governments to keep from laying off teachers,

·Giving federal subsidies to renovate schools and roads.

But what bang are we really getting for our buck?

First, it’s worth considering the absurdity of the government “stimulus” spending concept. The idea is that the government will jump start things, thus “creating” jobs, by injecting capital—money—into the economy. But where does that money come from? There is no stash of Obama-money. The only money the government has to inject into the economy is money it takes from we, the citizenry, who are the economy. So what “stimulus” spending is really doing is putting back into the economy money that the government took out of the economy in the first place. The only thing that has changed is in which citizen’s hands the money is (and, one suspects, there lies the key for Obama).

Imagine taking $10 from your daughter’s piggy bank to give to her as her allowance. You’d get the same “What kind of an a-hole are you?” stare you see from the cheated kids in the Ally Bank pony ads.

Second, it’s clear that Obama has no idea what a job is or where it comes from. Most of Obama’s proposal doesn’t even have anything to do with jobs at all. Cutting taxes is almost always a good thing, but the payroll tax reduction—I think it amounts to about $1000 per household—is likely not enough to make much difference in the economy. Unemployment benefits and training don’t create jobs that aren’t there. Subsidies to prevent teacher layoffs may prop up a few jobs, but how many can that really be? And renovating schools and roads—if done right—only takes so long, at which point the job is over. And for all his sudden bluster about the need to get this done “right now”—where was this urgency when he was spending all of last month on the golf course, or for that matter, during the last year and a half or so?—even if his plan were to pass Congress tomorrow it is virtually certain that the school and infrastructure projects he envisions would not even begin until the middle of next year, and the vast majority wouldn’t begin for years.

He can talk all he wants, but this plan isn’t going to create a bunch of jobs, and the few it might aren’t coming any time soon.

Past experience with Stimulus I suggests that Obama is overestimating his plan’s potential impact, probably by a substantial amount. If the CBO is to be believed, the $862 billion Stimulus I “created or saved” between 1.1 million and 3.3 million jobs, yet still leaves 14.3 million unemployed today. Query how they measure this sort of thing; the 200% +/- spread alone should call the estimate into question. But taking the CBO’s estimate at face value, Stimulus I ran between $261,000 and $783,000 per job, for an average estimate of about $522,000 per. Obama is estimating his new $447 billion Stimulus II will create 2 million jobs (who knows where he’s actually getting his numbers, but I’ll bet it’s no coincidence that just happens to be exactly the number that would bring unemployment under the magic 8% he predicted back in Stimulus I). That works out to $223,000 per job, or about 15% better than even the best numbers that can be derived from the CBO’s estimates on Stimulus I’s job results, and nearly 60% better than the median.

Even if we assume Obama is right that his plan will create jobs, that it is all net job creation and not jobs “saved,” and that it will create them all right now—none of which is true, but let’s indulge him for the moment—extrapolating from the CBO’s estimate of Stimulus I’s performance indicates the plan would result in approximately 856,000 jobs, reducing unemployment a whopping 5.9%, or from its current 9.1% to about 8.6%.

Hoo-rah. Tell it to the 13.5 million who would still be unemployed.

And what about the cost of this thing? Using Obama’s own best-case estimate, he wants to spend $223,000 apiece to create 2 million jobs. This means that combined, Stimulus I and II will have spent $1.3 trillion to create (“or save”) between 3.1 and 5.3 million jobs, and there will still be 12.3 million unemployed. Even if we accept the dubious proposition that this shows that stimulus “works,” at some point don’t we have to say we’re spending too much for too little return? For $715 billion—or a little over half the total if Obama gets his way—we could have just given each of the 14.3 million unemployed $50,000, roughly one year at the average household income level, which for most of them would represent a raise over their last job.

Meanwhile, to pay for this nonsense, Obama plans to raise income taxes on those making over $200,000 a year, a group that includes most small business owners—but, conveniently, still excludes reluctant tax-evader Warren Buffett (remember, he only makes $100,000 in salary subject to income tax; most of his earnings are in the form of capital gains, which so far Obama has not proposed to tap). So what we have is a proposal that:

·Has little to do with jobs

·Won’t make a significant dent in unemployment even under Obama’s own estimates, and

·Imposes additional financial burdens on the very people who actually create most of the jobs in this country.

Accepting that this isn’t just a political ploy to set up his re-election spin and he actually intended this to be something Congress would pass—I know, just go with me here—this isn’t a jobs plan. It’s a plan to take money from the productive and give it to the unproductive and to his political cronies in the AFL-CIO and NEA. Nothing more.

Somewhere, John Galt is warming up his plane. I just hope he takes me with him.

The sheer stupidity and/or nefarious semantic games of the Left never ceases to amaze.

In a September 8 piece at Forbes.com, contributor Howard Gleckman purports to take Governor Perry to task for what Gleckman calls Perry’s “loony” labeling of Social Security as a “Ponzi” scheme and a “monstrous lie.” Although Gleckman acknowledges that the program is underfunded, he says Perry is wrong on both counts because according to the Social Security Trustees’ 2007 Report it will still be able to pay young people 70-75% of their promised benefits. To him, that’s “pretty close” to meeting 100% of the program’s promise, and therefore Perry’s rhetoric is simply an idiotic impediment to fixing the system’s obvious fiscal problems.

At a certain level it doesn’t matter, but Governor Perry is correct. Social Security is a Ponzi scheme, and it is a lie, not just to our kids, but to everybody. And I have no idea why he’s now backing off the point just because some have criticized his use of the term.

Let’s review a little history.

The term “Ponzi scheme” refers to a con game—read: fraud—made famous in 1920 by swindler Charles Ponzi, and later perfected by Bernie Madoff. The details and window dressing can be customized—in Ponzi’s case it was selling investments in a company that was supposedly engaging in a kind of international postal arbitrage—but the guts are always the same. As the Securities and Exchange Commission defines it:

“A Ponzi scheme is an investment fraud that involves the payment of purported returns to existing investors from funds contributed by new investors.”

So a Ponzi scheme has three defining elements:

(1) Payment of purported returns

(2) To existing investors (that is, people who have already paid in)

(3) Out of money paid in by new investors.

Now, Social Security was born in 1935, and the idea was that people would pay into the system and the government would (snicker) hold the money in a trust fund where it would earn interest, and then return the money and the earned interest to the contributors over time upon their retirement.

No, really (snicker).

In practice, however, early recipients received benefit payments well in excess of their contributions (in itself a classic symptom of a Ponzi scheme). By 1937 the Supreme Court held in Helvering v. Davis that the program was constitutional because both employees’ and employers’ contributions were in fact just taxes that flowed into general revenue, thus destroying the “trust fund” myth. Ida Ludlow, the first recipient of monthly benefits, paid a total of $24.75 into the system, but her first check in 1940 was for $22.54, and she ultimately received over $22,000 from the system. What this means is the program has necessarily always funded benefits (i.e., paid “returns”) to current recipients (i.e., existing investors) out of the contributions of current workers (i.e., new investors), a fact confirmed by the very 2007 trustee report upon which Gleckman relies:

Even if a trust fund’s assets are exhausted, however, tax income will continue to flow into the fund. Present tax rates would be sufficient to pay 75 percent of scheduled benefits after trust fund exhaustion in 2041 and 70 percent of scheduled benefits in 2081.

Mr. Gleckman, that’s what a Ponzi scheme is.

Well, yes, it “looks like” a Ponzi scheme, but it really isn’t, and if you just understood risk and insurance you’d see that. Um, no. The recent debt ceiling and deficit discussions should have made abundantly clear that the federal government’s capacity to take and borrow is not infinite. Sooner or later, the program has the same risk of collapse that Ponzi’s stamp operation did. Nor is Social Security like insurance where risk of some negative event is spread over a number of people most of whom will never need to collect. Insurance is a wager; it’s a hedge against the happening of an event. Social Security is a retirement program—well, technically, it’s a tax, seeHelvering–it was supposed to be an investment upon which the contributors planned to reap a return in their old age, not a hedge in case they lived past retirement age.

The fact of the matter is Social Security is, and almost from its inception has been, structured to pay current recipients out of the current contributions, not out of profits generated from investing current recipients’ past contributions. That’s what a Ponzi scheme is. That by 2041 the program will be able to pay 75% of promised benefits doesn’t change its fundamental structure as a Ponzi scheme, nor does it make it OK. The system is going to take people’s money with a promise of X, then deliver 75% or less of X out of money it takes from someone else. And 25% of a lie is still a lie.

Furthermore, the 2007 trustee report upon which Gleckman relies predates last year’s payroll tax reduction (which cut contributions into the program by an estimated $120 billion) and the current recession. The 2010 Report Gleckman says “isn’t much different”—query, if that’s so, why he didn’t just use it; maybe because the 2010 report has the program exhausting its assets in 2037, four years earlier than the 2007 report projected?—likewise doesn’t account for the payroll tax cut. For political reasons, however, I suspect congressional Republicans will have to go along with Obama’s proposal to extend the payroll tax reduction, despite it being opposite of the Social Security Trustees’ obvious recommendation (both in 2007 and in 2010) to try to restore the program’s fiscal sustainability. So the real long term picture for the program is considerably worse than even what is reflected in the current trustee report.

Call it what you want. The bottom line is that the idea that Social Security is some kind of retirement “insurance” is and always has been a lie. It doesn’t pay you “benefits” earned from investing your contributions to the program. What Social Security does is take your money by force and give it to your parents, then take your kids’ and your grandkids’ money–again, by force–and give it to you. As I posted here, even Genius Joe Biden recognizes that a system like this depends on there being enough children to contribute in the future for it to survive. With lower birthrates in the post-boomer era meaning there are fewer and fewer to pay in, the program sooner or later faces collapse under its own weight.

Smells like a Ponzi scheme to me, but the real question is this:

How much better off would we all be if instead of taking our money from us the government let us keep our money and invest in our own retirement, and let our employers keep their money and invest in their businesses (or, God forbid, increase wages)?

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“The only rules that really matter are these: what a man can do and what a man can’t do. For instance, you can accept that your father was a pirate and a good man or you can’t. But pirate is in your blood, boy, so you’ll have to square with that some day. And me, for example, I can let you drown, but I can’t bring this ship into Tortuga all by me onesies, savvy? So, can you sail under the command of a pirate, or can you not?”

—Johnny Depp as Captain Jack Sparrow in Pirates of the Carribbean: The Curse of the Black Pearl

Boy, I’m sure glad we finally got to hear from the President, although coming out of Thursday’s address to a joint session of Congress I’m left wondering when he’s going to make the speech on job creation we’ve been told was coming.

There will be ample discussion from all the usual corners about the substance of Obama’s plan, such as it is; how it’s yet another half-trillion dollars in still-failing stimulus, how no matter how many times the President says “it’s paid for” he has yet to explain how that’s so, how it’s unlikely to result in any significant job creation any time soon if at all, yadda yadda yadda. What I want to do is take a look at a couple of aspects of the President’s speech as they relate to our constitutional republic.

To begin with, the tenor of the address and even the juvenile and transparent scheduling debacle reflects a fundamental misunderstanding of, and disrespect for, how our federal government is supposed to be structured. Last time I looked, we had three separate and co-equal branches of government, each with its own Article creating it and establishing its scope; the office of President isn’t even the first branch listed (that’d be Congress in Article I). Yet as I have discussed here,here, and here this President routinely behaves as though he is a CEO—read: dictator—with the members of the other branches serving as his subordinates like so many corporate vice presidents.

The President didn’t need a joint session of Congress to present his plan. Assuming he actually has a plan with any substance to it, he could have submitted a draft bill at any time over the last 900-some-odd days he’s been in office. And he didn’t need a joint session of Congress to get a national TV audience to convey his message; Presidents have been making TV addresses from the Oval Office for 40 years. No, by purporting to unilaterally schedule a joint session for him to speak, doing it on basically no notice—does everything with this administration have to be an immediate emergency, and given the apparent urgency of the matter could he really not at least have started the scheduling discussion before he left to spend a month on Martha’s Vineyard?—then using that platform to give Congress a public dressing-down, Obama deliberately set out to embarrass them like an abusive schoolteacher.

It isn’t the first time he’s done this. Recall Obama’s 2010 State of the Union Address, during which he chastised the Supreme Court for its campaign finance ruling in Citizens United v. Federal Election Commission. It is becoming all-too routine for this President to publicly demean and belittle the other branches of government by convening formal governmental occasions that demand a certain respect and decorum and then use them to bully and embarrass guests (in the case of the Supreme Court) or his hosts (in the case of Congress). It’s at best uncivil, and it’s at worst faux-imperial.

Furthermore, the President’s tone and message in scolding Congress ignore what Congress’ job is. To hear Obama tell it, because there is an economic crisis and the American people are frustrated, Congress should do what he wants. But Congress doesn’t work for Obama, nor does any one congressman work for the “American People.” Each member of Congress works for the 700,000-something people in his or her district. And as I’ve posted before, some of us disagree with Obama’s approach to the economy, and we’ve sent our representatives to the District with all-but-express instructions to stop him. So when they don’t go along with him, they’re not “playing politics,” and they’re not “putting party before the American people”; they’re doing their job.

I seem to recall someone bearing a striking resemblance to the President telling us that “elections have consequences.”

At least some of the President’s proposals, even in broad outline, also demonstrate a misunderstanding of the scope of Congress’ charge under the Constitution. Consider, for example, Obama’s proposals to spend federal money renovating schools and providing financial aid to local governments to avoid teacher layoffs. Now, I am all for education. I agree that teaching our kids is among our greatest responsibilities and that as a society we don’t place as high a priority on it as we should. I will even concede for purposes of this discussion that these two proposals will “create” jobs.

But no matter how good an idea it might be, no matter how necessary it might be, no matter how badly you might want it, none of that means the United States Congress is authorized to do it under our Constitution.

Contrary to popular belief, Congress does not have unlimited power to do anything it deems a good idea, or anything the President demands it do. As I posted last week, Article I, Section 8 lists the specific powers Congress has, and none of them come anywhere close to permitting Congress to provide federal funding for school infrastructure or teacher salaries. It’s just not there.

Certainly, I’m aware that Congress in fact does spend money on these kinds of programs, and has for a long time. But it is a dangerous, dangerous road for us to continue to ignore the very clear limitations the Constitution was intended to place on the scope of federal power.

Professor Obama might do well to dust off his copy and maybe crack the binding. Maybe review a little Emily Post while he’s at it.

Last week U.S. District Judge Sam Sparks blocked key portions of a recent amendment to Texas’ Woman’s Right To Know law that provided for mandatory sonograms prior to doctors performing abortions. By way of background, the amendment, known as C.S.H.B. 15, passed the Texas Legislature this Spring by an overwhelming—and bipartisan—2/3 majority in both houses, and was signed into law by Governor Perry. Judge Sparks’ decision was issued in the context of a pre-emptive lawsuit filed by a New York entity called The Center for Reproductive Rights, purportedly as a class action on behalf of Texas providers of abortion services (query how such a class could possibly ever be certified, but that’s another discussion).

Would that people in New York were as respectful of our rights as Texans to govern ourselves as our Governor is of their rights as New Yorkers to govern themselves. So much for having the decency and respect for our political processes to rely on the legislative process to change policy, eh, Mr. Krugman?

Judge Sparks struck provisions requiring doctors to display a sonogram image of the unborn child, make the heartbeat audible, and to describe the fetus’ dimensions, development, and activity, saying such provisions violated the First Amendment. The CRR’s Nancy Northup hailed the decision as a “huge victory for women[.]”

How do you figure?

First, let’s be clear: C.S.H.B. 15 contains absolutely nothing preventing a woman from getting an abortion in Texas if she chooses. Contrary to the obviously political complaints contained in Judge Sparks’ order, the Act is not “onerous”—sonograms are routinely performed anyway—it isn’t going to make procedures significantly more expensive—the Act provides for making information about free sonograms available—and it is difficult to see how there is going to be a mass exodus of doctors leaving the Texas abortion market such that access to abortions is going to be materially impaired. So C.S.H.B. 15 isn’t really about women’s “reproductive rights,” whatever those are.

Nor does C.S.H.B. 15 impact women’s First Amendment free speech rights. Often skipped in media coverage of the statute is the fact that the bill expressly allows women to opt out—they don’t have to see the sonogram or hear the audible heartbeat if they choose not to. All the bill was designed to do was to ensure that the information was available to women who might not know to ask for it, and after all isn’t that what “informed consent” is all about?

Let’s remember a point that’s often lost in this debate. Leaving aside the fact—yes, fact—that abortion terminates an innocent human life, abortions very often take a terrible and permanent toll on the very women whose “reproductive rights” the pro-abortion movement so vociferously purports to protect. The emotional scars left as the realization of what they’ve done sets in don’t go away. What possible purpose is served by not ensuring that a woman at least has access to all the available relevant information before she makes a decision that either way she goes will impact her for the rest of her life?

I repeat: How do you figure this is a huge victory for women?

But what about the doctors? Doesn’t the First Amendment protect them against the government requiring them to provide certain dictated information? You mean like requiring healthcare professionals to provide certain specific end-of-life “option” information, as was required in a version of Obamacare supported by many on the Left? Or requiring attorneys to include certain disclaimer language in advertisements as do Texas and most other States? Or requiring cigarette manufacturers to include certain warnings on their labels? Or requiring restaurants—ahem, New York—to post dietary information on their menus? Or requiring certain commercial property owners—ahem, California—to post statements that their property contains substances “known to the State of California” to cause cancer? Government requirements that providers of goods or services give certain information or make certain statements to their customers are nothing new.

The First Amendment was intended to ensure that people could speak out against the government. It was never intended as a magic talisman affording absolute protection of, and shield against, all speech at all times and in all contexts. Where the government has a legitimate interest—and in the area of abortion and informed consent the Supreme Court has said it does, see Gonzales v. Carhart and Planned Parenthood v. Casey—narrowly-tailored intrusions upon speech do not violate the First Amendment. And it is appropriate that the burden in this instance be borne by the doctors who can be expected to know what information is available, rather than a woman who might not necessarily know that with a sonogram she could see her baby, or that it is possible for her to hear the baby’s heartbeat. One imagines that for at least some women, that might be information relevant to her decision. For those to whom it is not, they can easily decline the information or ignore it; but there is no recourse for those to whom it would matter but who never receive it or even know it exists.

Bear in mind that Texas has had informed consent laws on the books—in the abortion context as well as generally—since 2003. It’s only the addition of physical evidence and description pertaining to the condition of the unborn child that is now raising concern. This has nothing to do with the First Amendment.

The pro-abortion movement is absolutely terrified of anything that would illustrate the undeniable fact that what they call “the fetus” is actually a human life. They don’t want you to see that she has a human face, and fingers and toes. They don’t want you to hear her working heartbeat, fully separate from her mother’s. Or maybe it’s that they themselves don’t want to have to confront the truth of what it is they advocate. As Jodie Foster as Clarice Starling observed in Silence of the Lambs, “[i]f he sees Catherine as a person and not just an object, it’s harder to tear her up.” So they concoct a lawsuit to prevent that information from being made available. Translated: groups like the CRR want women to be making the decision whether to have an abortion in as ignorant a state as possible as to the actual condition and attributes of the life they carry, regardless of the possible emotional and psychological consequences that decision may have for that woman down the road.

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